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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> AB (Surrogacy: Consent), Re [2016] EWHC 2643 (Fam) (25 October 2016) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2016/2643.html Cite as: [2017] 2 FLR 217, [2016] EWHC 2643 (Fam) |
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Siting at Canterbury
Strand, London, WC2A 2LL |
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B
e f o r e :
____________________
C and D |
Applicants |
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- and - |
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E and F |
1st and 2nd ![]() | |
- and - |
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A and ![]() ![]() ![]() ![]() |
3rd and 4th ![]() |
____________________
Barbara
Connolly QC & Mr Colin Rogerson (instructed
by
Dawson Cornwell) for the Applicants
Mr Richard Jones (instructed by
Wedlake
Bell)
for the 1st and 2nd
Respondents
(Both
Counsel and Solicitor Acted Pro
Bono)
Ms Deirdre Fottrell QC (instructed
by
Goodman Ray) for the 3rd and 4th
Respondents
Hearing date: 29 September 2016
____________________
Crown Copyright ©
Mrs Justice Theis DBE :
Introduction:
(1) Theyremain
living with the applicants, who are their
biological
and psychological parents,
but
not their legal parents. The child arrangements order, which gives the applicants parental
responsibility,
lasts until they are 18 years old.
(2) Therespondents,
who wish to play no part in the children's lives,
remain
the children's legal parents throughout their lives
by
virtue of ss 33 and 35 HFEA.
Relevant background
Discussion
'(3) …section 67 (1) ACA 2002 which provides 'An adopted person is tobe
treated in law as if
born
as the child of the adopters or adopter.' This is what demarks the difference
between
the two orders. Adoption orders create a presumption in law that the child is treated as if the
biological
child of the adopters. A parental order does not
require
that presumption to
be
made.
Both
orders are transformative,
but
a parental order proceeds on the assumption one of the applicants is the
biological
parent. That is one of the key criteria in s 54 HFEA. It doesn't change the child's lineage as an adoption order does; a parental order creates a legal parentage and
removes
the legal parentage of the
birth
family under the provisions of the HFEA 2008. Unlike adoption there is already a
biological
link with the applicants
before
the parental order application is made. Its purpose is to create legal parentage around an already concluded lineage connection.
(4) From the point of view of the child the orders are different. An adopted child is seen to have had a family created for it, whereas in asurrogacy
arrangement the child's conception and
birth
has
been
commissioned
by
the parents, the child has a
biological
connection and the same identity as one of the parents. The latter arrangement is more congruent with a parental order than an adoption order.
(5) These differences are important welfare considerations from the child's perspective. These are thereality
of the identity issues children will need to
resolve.
In
surrogacy
situations the court
by
making a parental order settles the identity
issue and does not leave other fictions tobe
![]()
resolved,
which could
be
the case if an adoption order was made in these situations.
Conclusion